Hanley v. Hanley

493 S.E.2d 337, 128 N.C. App. 54, 1997 N.C. App. LEXIS 1201
CourtCourt of Appeals of North Carolina
DecidedDecember 2, 1997
DocketNo. COA97-116
StatusPublished
Cited by1 cases

This text of 493 S.E.2d 337 (Hanley v. Hanley) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hanley v. Hanley, 493 S.E.2d 337, 128 N.C. App. 54, 1997 N.C. App. LEXIS 1201 (N.C. Ct. App. 1997).

Opinion

WALKER, Judge.

Plaintiff and defendant were married on 4 January 1975 and separated on 30 March 1995. The parties had two children during the marriage: Anna Collins Hanley, born 31 May 1979, and James F. Hanley, Jr., bom 20 April 1981.

During the marriage, defendant worked for several banks and then for Stan Taylor Insurance Agency, where he became part owner in 1991. Defendant’s gross income, separate and apart from his ownership interest in the company, had grown from nearly $80,000 in 1991 to $132,000 in 1995.

After the parties married, the plaintiff received a degree in Industrial Art Education and worked for the Wake County School System as a full-time teacher for three years. After the birth of the parties’ first child, the plaintiff did not work for a number of years. After the birth of the parties’ second child, the plaintiff worked part-time as a substitute teacher and held other various part-time jobs. From 1993 through 1995, plaintiff worked at Alcatel twenty hours a week earning $10.00 an hour.

In early 1995, prior to the separation, the parties and their children went on a trip to Hawaii. The original itinerary was that the entire family would return together; however, while there, plaintiff met some people and wanted to stay on for a few extra days. The daughter stayed with plaintiff in Hawaii for an extra three days while the defendant and the son returned home.

Shortly after plaintiff’s return to Raleigh, she expressed her desire to return to Hawaii for an undetermined period of time. Approximately ten days after returning, plaintiff left again for Hawaii, purchasing tickets with defendant’s credit card. Plaintiff informed defendant that, “I do not know how long I will be gone. If you are here when I get back, that is okay. If you are not here when I get back, then [56]*56that is okay.” Plaintiff spent approximately two months in Hawaii, purchasing several items on defendant’s credit card and also purchasing a car.

According to the plaintiff, when she returned to Raleigh she was met with anger and a cold and indifferent attitude by defendant who said he “didn’t want to continue with the marriage.” Eventually, plaintiff obtained other housing and the parties executed a separation agreement which provided, among other things, that defendant would pay plaintiff $600.00 a month in “family support” until the children graduated from high school.

Plaintiff filed this action seeking post-separation support, permanent alimony, and attorney’s fees. Defendant denied all claims and counterclaimed for custody and child support. At the hearing on plaintiff’s alimony claim, the trial court found that plaintiff had abandoned defendant without just cause or excuse and entered an order denying her claims for permanent alimony and attorney’s fees. The trial court subsequently rejected plaintiff’s motion to the trial court to make additional findings of fact and amend its judgment.

Plaintiff first contends that the trial court erred in finding that plaintiff abandoned defendant as there was no evidence in the record to support this conclusion.

Abandonment occurs where one spouse brings the cohabitation to an end (1) without justification, (2) without consent, and (3) without intention of renewing the marital relationship. Pruett v. Pruett, 247 N.C. 13, 23, 100 S.E.2d 296, 303 (1957); see also, Panhorst v. Panhorst, 277 N.C. 664, 178 S.E.2d 387 (1971); Powell v. Powell, 25 N.C. App. 695, 214 S.E.2d 808 (1975).

It is undisputed that the parties never resumed cohabitation after plaintiff returned to Hawaii. Further, plaintiff does not contend she was justified in leaving Raleigh and returning to Hawaii. We find the first prong of the definition of abandonment (the bringing about of the end of cohabitation was unjustified) has been met.

We next examine whether the evidence presented supports the second prong of the test for abandonment — whether the defendant gave his consent to the end of the cohabitation.

Plaintiff argues that if she is deemed to have brought the parties’ marital cohabitation to an end, it was with the defendant’s implied consent as he did not communicate his objection to plaintiff.

[57]*57In Sauls v. Sauls, 288 N.C. 387, 218 S.E.2d 338 (1975), the defendant husband argued that the trial court was incorrect in awarding alimony to the plaintiff wife on the grounds of abandonment. There, the defendant contended that the plaintiff had consented to the separation and thus it could not be deemed abandonment. Id. at 390, 218 S.E.2d at 340. Our Supreme Court remanded the case for a trial de novo, finding there was insufficient evidence in the record to determine if the trial court’s conclusion could be supported. Id. at 391, 218 S.E.2d at 341. The Court did, with regard to the issue of consent, state the following:

Mere acquiescence in a wrongful and inevitable separation, which the complaining spouse could not prevent after reasonable efforts to preserve the marriage, does not make the separation voluntary or affect the right to divorce or alimony. Nor, under such circumstances, is the innocent party obliged to protest, to exert physical force or other importunity to prevent the other party from leaving.

Id. at 390, 218 S.E.2d at 341 (citations omitted).

Included in the trial court’s findings was that “defendant has never been a controlling person and his belief was that if the plaintiff wanted to leave the family and return to Hawaii, then he should not stop her from doing so.” Further, there was evidence that plaintiff had previously expressed her displeasure with defendant and unhappiness with the marriage. Defendant testified that while he did not want plaintiff to return to Hawaii, he was not going to “keep her from doing something she says she really needs or wants to do.” Thus, while defendant did not outwardly “protest” or “exert physical force” to prevent plaintiff from leaving, it is clear from the evidence that he did not consent to ending the marital cohabitation.

Finally, we must examine whether there was sufficient evidence to support a finding that the plaintiff returned to Hawaii “without the intent to renew the marital relationship.”

“The trial court’s findings axe conclusive if supported by any competent evidence, even when the record contains evidence to the contrary.” Ellinwood v. Ellinwood, 94 N.C. App. 682, 685, 381 S.E.2d 162, 164 (1989). “Moreover, since there is no all-inclusive definition as to what will justify abandonment, each case must be determined in large measure upon its own circumstances.” Tan v. Tan, 49 N.C. App. 516, 521, 272 S.E.2d 11, 15 (1980), disc. review denied, 302 N.C. 402, 279 [58]*58S.E.2d 356 (1981).

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Bluebook (online)
493 S.E.2d 337, 128 N.C. App. 54, 1997 N.C. App. LEXIS 1201, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hanley-v-hanley-ncctapp-1997.